Illinois Probate Act 755 ILCS 5/6-20: Petition to Admit Will to Probate on Presumption of Death of Testator - Notice

Typically, when someone passes away, the person named as executor in the decedent’s will files a petition with the court along with the will and the testator’s death certificate, requesting the court to admit the will to probate and issue letters testamentary. There are times, however, when a death certificate is not available, but circumstances lead a person’s loved ones to assume that the person is deceased. Illinois law has specific rules as to how to petition the court to admit a will to probate under such circumstances. If you have questions related to probating a will where a death certificate is not available, including the requirements of the Illinois Probate Act section 6-20- Petition to admit will to probate on presumption of death of testator - notice, contact the skilled Chicago probate attorneys at the Law Offices of Stephen Bilkis & Associates who can explain the procedural requirements.

Typically, probate is initiated when the executor named in the testator’s will files a petition with the appropriate Chicago area Probate Court along with the death certificate and the will. The court will then review the will to determine if it is authentic. If a hearing is necessary, then the two witnesses to the signing of the will must testify in court as to the validity of the will. Those with an interest in the decedent’s estate must be listed in the petition and must receive notice. They have the right to initiate a will contest, by filing an objection to probate. If the court concludes that the will is valid, it will issue an order admitting the will to probate and issuing letters testamentary to the executor. With the letters the executor has the legal authority to being the process of administering the decedent’s estate and ultimately distributing estate assets to the beneficiary the decedent named in his or her will.

There are special procedures that Illinois law requires if you would like the Probate Court to admit a will to probate based on a presumption of death of the testator. The petition must include:

• The facts and circumstances raising the presumption that the testator is deceased
• The last known address of the testator
• The name and address of each person in possession or control of any property of the testator
• The names and address of the beneficiaries that the testator listed in the will
• The names and addresses of the testator’s legal heirs (surviving spouse, children, etc.)
• The approximate value of the decedent’s estate
• The name and address of the executor who was named in the will.

The law also requires that the petitioner send a notice related to the petition. Typically such a notice is sent to the beneficiaries and heirs listed in the petition for probate. However, when the petition is based on the presumption of death of the testator, a notice must also be sent to the testator at his or her last known address. In addition, the notice must be published for 3 consecutive weeks. As a Chicago probate attorney will explain, these notice requirements are to ensure that if the person presumed to be deceased is actually still alive, he or she would have received notice of the proceeding. There have been instances in which someone who was presumed dead was not in fact dead.

After the will is admitted to probate and letters testamentary issued, the executor can move forward with the activities necessary to administer the estate. The executor must collect the decedent’s assets and inventory them. The petition will include the names and addresses of individuals who are in possession of the decedent’s assets. The executor has the authority to take over those assets and safeguard them. The executor must also determine the value of the assets in the estate. This may involve getting a professional appraisal of certain items. The value of the estate is important information as the executor must know the assets available to pay estate debts and to distribute to beneficiaries.

The goal of settling a decedent’s estate is not only to distribute estate assets to the beneficiaries. It is also to make sure that creditors of the decedent and creditors of the decedent’s estate are paid. In fact, creditors must be paid prior to the distribution of assets. Creditors have only a limited time to file claims against the estate. For more information on the deadline for filing a claim and the procedure, contact an experienced probate attorney in Chicago. Debts may include bills owed by the decedent at the time of his or her death such as credit card bills, utility bills, and medical bills. Debts may also include bills associated with administering the estate. The executor is responsible for filing the decedent’s final tax return and paying any outstanding state or local taxes.

The final major step in the administration process is for the executor to distribute assets based on the terms of the will.

In Illinois estate administration typically takes 6-12 months. However, complications may cause the process to take longer. There may be estate litigation and other complex issues associated with the circumstances that lead to the decedent being presume dead. There may also be dispute among family members related to the will and how the executor has handled the administration of the estate. Problems locating beneficiaries may cause delays. There may even be objections to the validity of the will, requiring additional hearings.

1. Petition to admit will or to issue letters: Illinois Probate Act, 755 ILCS 5/6-2
2. Petition to issue letters: Illinois Probate Act, 755 ILCS 5/9-4

(a) Anyone desiring to have a will admitted to probate on the presumption of death of the testator must file a petition therefor in the court of the proper county. The petition must state, in addition to the information required by Section 6-2 (other than clauses (a) and (b)), the facts and circumstances raising the presumption, the name and last known post office address of the testator and, if known, the name and post office address of each person in possession or control of any property of the testator.

(b) Not less than 30 days before the hearing on the petition the petitioner must (1) mail a copy of the petition to the testator at his last known address, to each of the testator's heirs and legatees whose names and post office addresses are stated in the petition and to each person shown by the petition to be in possession or control of any property of the testator, and (2) publish a notice of the hearing on the petition once a week for 3 successive weeks, the first publication to be not less than 30 days before the hearing. The notice must state the time and place of the hearing, the name of the testator and, when known, the names of the heirs and legatees. The petitioner shall endorse the time and place of the hearing on each copy of the petition mailed by him. When the petition names a trustee of a trust, it is not necessary to mail a copy of the petition to any beneficiary of the trust who is not an heir or legatee, or to include the name of such beneficiary in the published notice. If any person objects to the admission of the will to probate, the court may require that such notice of the time and place of the hearing as it directs be given to any beneficiary of the trust not previously notified. The petitioner must file proof of mailing and proof of publication with the clerk of the court.

(c) A copy of the petition need not be sent to any person not designated in the petition as a minor or person with a disability who personally appears before the court at the hearing or who files his waiver of notice.

(d) When a will is admitted to probate on presumption of the testator's death, the notice provided for in Section 6-10 is not required.

The loss of a loved one is always difficult. When the circumstances surrounding the loss are mysterious such that family members reluctantly must presume that the loved one passed away, the situation is even more difficult. If you are an executor, beneficiary, or other interested party in a probate proceeding involving the presumption of death of a loved one, contact a probate attorney serving Chicago at the Law Offices of Stephen Bilkis & Associates to ensure that all legal requirements are followed. Our skilled attorneys have decades of experience representing clients in complex probate and estate matters before the Illinois Probate Court. If you have concerns related to probate including the requirements of Illinois Probate Act section 6-20- Petition to admit will to probate on presumption of death of testator - notice, or any other probate or estate matter contact one of our skilled attorneys attorneys at 855-454-5529 to schedule a free, no obligation consultation regarding your case. We serve clients throughout Chicago.